broadcast for this back to work monday night as we start a new week together. one week to go until our presidential election. thank you so much for being here. on behalf of all my colleagues at the networks of nbc news, good night. colleagues at the networks of nbc news, good night. tonight on "all in" -- >> here's what we have to do, we're not going to control the pandemic. >> eight days until november 3rd, the president has given up the fight to stop the virus. >> all you hear is covid, covid, covid, covid, covid, covid, covid. covid, covid, covid, covid. >> what in the hell is the matter with this man. >> tonight, speaker nancy pelosi and the republican bargain with donald trump, and 62 million americans have already voted. new nbc analysis of the unfolding story line from the data in florida and north carolina. plus, why making voting difficult isn't just a red state

problem, and why making it arte harder to count votes makes it a key priority of the trump campaign, when "all in" starts right now. good evening from new york, i'm chris hayes. tonight we're expecting the white house to convene a celebration for the swearing in of amy coney barrett as a justice of the supreme court. senate vote to confirm her is currently under way, and there is little doubt the republican majority will succeed in getting what they wanted here. but if most americans are not in a celebratory mood tonight, really, who can blame them. here are the latest numbers on the coronavirus outbreak in this country. over 62,000 new cases today on a monday, which is a low reporting day. as you can see in the red chart, are we are well into a third spike. 42,000 americans are hospitalized tonight as i speak to you. that's the blue chart on the right of the screen. cases are peaking. they're at their all-time high in 20 different states. look at that. 20 different states across this country. hospital capacity is surging in el paso, and utah, and it looks like the outbreak is only going

to get worse and worse. the message we're hearing from the white house is you're on your own. we are done with this. that's not really an exaggeration. listen to the president's chief of staff, mark meadows yesterday morning. >> we're not going to control the pandemic. we are going to control the fact that we get vaccines, therapeutics and other mitigation. >> why aren't we going to get control of the pandemic? >> because it is a contagious virus just like the flu. >> oh, it's a contagious virus? huh, great point. yeah, i guess we should just give it up, right? they're not even going to control the pandemic as it continues to ravage the country. their words. the president has made this even part of his stump speech. >> barron, he had it. the doctor said you know, fwar barron, a very tall young man, and a great guy, right? but he is young. and the doctor said, sir, barron

has tested positive. i said that's terrible. barron don't even know he was -- the next day the doctor comes in, sir, barron is fine. the fact is i had it. it worked out well. now i'm immune. i could run up and kiss this whole group of people, men and women. >> so that's the message from the president, my very tall son and i got it, we're fine. so suck it up, buttercup. this event on the south lawn tonight, this celebration for amy coney barrett is a bookend on a crazy and crazily destructive four weeks in american political history. it was four weeks ago the president convened this super spreader event at the white house rose garden to announce his nomination of amy coney barrett to the supreme court before ruth bader ginsburg was even in the ground, and at least 14 people who attended that event there, fraternizing without masks in close proximity, breathing on each other, 14 tested positive in the following days. of course the president and first lady and two u.s. senators and kellyanne conway, chris christie, who was hospitalized in the icu for a week, and the

white house press secretary. the president may already have been infected with the virus by the first debate that following tuesday, and we just got lucky he didn't infect his 77-year-old opponent. here's the most important thing to take away from the pictures you see of the rose garden there. it was not just trumpists at the rose garden last month, it was all the major players in the institutional republican party who were there and the federalist society. everyone went along with it because this supreme court nomination is what brings them all together. this is the brutally destructive cynical deal struck between donald trump and the republican party writ large. they let the president do whatever he wants, line his pockets by shaking down the government, shred our democratic institution, destroy the country's pandemic coping capacity as long as he gives them judges and justices and some tax cuts for rich people and corporations. that's the corrupt bargain.

it was on display in all those smiles and all those hugs and attaboys. here we are four weeks later and over 30,000 people have died in those four weeks. and a third crest of cases is happening as you can see on the graph on the right side of your screen, and now we have a second white house outbreak who could have predicted around vice president mike pence this time. five people in pence's orbit have tested positive, his chief of staff and adviser and three staffers. the president's chief of staff mark meadows conferred they tried to conceal the latest outbreak because, of course, why wouldn't they? the vice president still traveling around the country for campaign events, as is the president despite an analysis from usa today showing cases surged in the wake of trump campaign events in multiple states. so the virus remains out of control, the trump the trump administration is officially saying they're done with even trying to deal with it, kind of flirt with the idea that it's nice to get it.

look at me. and it's fitting amidst this bleakness for the rest of us, they have come together to celebrate their own personal victory. the message down the stretch, the final stretch of this campaign, to the american people is we got our justices and we got coronavirus and survived, so you are all on your own. there's nothing you can do about it. mitch mcconnell made that explicit yesterday on the senate floor. >> this is something to really be proud of, and to feel good about. we made an important contribution to the future of this country. a lot of what we have done over the last four years will be undone sooner or later by the next election. they won't be able to do much about this for a long time to come. >> they won't be able to do much about this for a long time to come. you know what, he's right. although there was one thing that was missing in his speech, something that has been missing from a lot of conservatives i see writing about the election.

something else that mitch mcconnell and the institutional republican party and all the staffers and the lawyers and the factotums and the function and the press who have supporting and spinning for this president, and the people who work for donald trump himself and all of his apologists who like to post as independent thinkers, too clever removed from it by half, something every last one of them have done together other than supreme court justices which can not be reversed, they have participated in a project that led to the deaths of probably 100,000 americans that didn't have to die. congratulations. you got that done too. that also can't be reversed. they can't come back. we can't undo that. that's the other accomplishment here, judge barrett. they traded one for the other. they traded those lies for this justice. and they had a party about it in the rose garden too now. we can't do anything about the lives we've lost or about amy coney barrett being on the supreme court.

she's going to be now, so all we can do is take that rage and channel it, rise up together as a country to kick them out of power, and begin some work towards repairing what they have broken and mourning those we've lost. elie mystal is a justice correspondent for the nation, brian former aide of chuck schumer and executive director of demand justice. elie, your thoughts on this evening. >> mcconnell was wrong about one thing, there is something that the democrats can do about these justices if the democrats are not weak, and that is expand the number of justices on the supreme court to disincentivize the exact faustian bargain you just so brilliantly explained, okay. what we have right now is mitch mcconnell setting the house on fire, and democrats looking at the fire extinguisher and saying but i don't want to break the glass. it's been there since 1869.

what happens if we break it. the fire extinguisher is how you stop this, chris. if you had many more justices on the court, the bargain that the republicans made wouldn't make sense anymore. it wouldn't make sense to grind government to a halt. it wouldn't make sense to destroy norms and normal order of things, and it wouldn't make sense to make a deal with a thrice married openly bigoted misogynist, it wouldn't make sense if all you were going to get is two or three justices out of 19 or 29 or 39. >> right. >> you have to disincentivize each individual supreme court justice. and the way to do is expanding the court. >> i got to say, brian, this has been an incredibly radicalizing month for a lot of people watching this happen. i will never ever in the rest of my life read an amy coney barrett decision from the court without seeing the charts, without seeing the daily fatalities of every day.

like, she is forever connected to that, justice barrett. like she is a person who for the rest of her life on that court, every time i see her name, and every time i get an opinion, i will see those numbers surging and i will see those fatalities, and the faces of covid tracking project tweeting about the people that we've lost, connected to her so that she can be in this position, and i think the procedural hardball here has backfired in that it's radicalized members of the senate democratic caucus. i want to play what angus king said, and angus king is not a super procedurally radical guy. this is what he had to say. listen. >> i don't want to pack the court. i don't want to change the number. i don't want to have to do that, but if all of this rule breaking is taking place, what does the majority expect? what do they expect? they expect that they're going to be able to break the rules with impunity, and when the shoe maybe is on the other foot, nothing is going to happen?

>> what do you think, brian, do you think this moment is a breaking point for the democrats in this caucus? >> i hope so, and i'm heartened when i hear comments from those that you just played, from angus king, chris coons, a moderate, very close to joe biden say he is considering adding seats to the supreme court. but i have to be honest, i worry. we're a week out from an election: step one is winning the election, but we can't go to sleep on this feeling of outrage. we need to remember this. we need to bottle this. we need to conserve this energy and outrage, and remember it on the other side of the election, even if we have a good result. i think a lot of people might lull themselves into thinking if he take back the senate, if we win back the white house, that's enough. it's not going to be. the republicans have gotten to this point because they have sustained this mission about taking over the third branch of government for 40 years. we have failed to show that same level of perseverance. this is something we're going to have to work at, chris. the issue with the courts and judges has for a long time on the democratic side of the aisle

been the exclusive preserve of mostly male, mostly white ivy league educated lawyers, and we need to have a citizen powered movement now, just like we have seen citizen-powered movements spring up on the issue of gun safety, on the issue of climate change. well need to have a grassroots movement that holds democratic senators' feet to the fire, that holds the incoming administration joe biden's feet to the fire. joe biden says there's going to be a commission that looks at this over the course of 180 days. that gives us six months to organize around this, and make sure democrats remember the feeling they feel right now because i'm worried that, you know, john roberts has proven very adept at slow playing, whenever there's increased scrutiny of the supreme court, he makes sure that the court keeps a low profile. he can wait this, you know, 180 day period out unless we keep and preserve and sustain a grass roots movement that insists on nothing less than adding feet to the supreme court. >> brian's point here, elie, no one should be counting chickens. the outcome of the future is

unwritten. i have no idea what's going to happen in the next eight days. i didn't know a month ago what would happen in that month. so every ounce of strength that citizens have, again, across the ideological spectrum in a large coalition alley, the threat to democracy here on multiple fronts is as intense as it's been. and people need to understand that it's incumbent on each of us to do our part in essentially fighting for the survival and flourishing of american deem any this perilous moment. >> chris, while mitch mcconnell was on the floor talking tonight, the supreme court on strictly partisan lines issued another 5-3 decision slamming voting rights in wisconsin. if there's one thing that i want people to take away and remember when it comes to the question of court expansion, is that court expansion is the only way to defend the franchise from republicans who simply do not

want everybody to vote and do not want to count all the votes of the people who try to vote. this election, if we let the supreme court go, and if we don't focus on it, this election will be the last one that we can even pretend was free and fair. and that is the key take away from all of this supreme court talk. it directly related to people's ability to exercise their franchise. >> the final point to me, and what's so maddening about all of this is this is eyes wide open for the republican establishment. mitch mcconnell knows precisely who donald trump is and what he has done, and nothing shows that better than october 8th. mcconnell said he's avoided the white house for months because of covid concerns. which i'm glad that he's able to not go to the white house and keep himself safe. the folks hospitalized on an ventilator and in the icu in el paso right now that. >> didn't get to escape the wrath of donald trump's incompetence. all of these people know who

donald trump is and what he's doing, they're going to get what they can out of him. >> like rats flee from a sinking ship, chris. you've seen republicans start to distance themselves. and mitch mcconnell and his outside superpac are actively appealing to republican donors telling them give us as a check on president biden. they're writing off donald trump. donald trump would benefit mightily from a covid relief package that nancy pelosi is desperately trying to negotiate with steven mnuchin, and it's mitch mcconnell that would rather see donald trump thrown overblown than give relief to average americans that are suffering here. this is the corrupt bargain all for the sake of getting judges, and it's going to take a sustained grass roots movement. i think there's a new generation of democratic leaders that are going to be coming to washington in january that get it. if you look at people like mondaire jones, willing to introduce a bill to increase the size of the court by four seats, eric holder, republicans like charles freed and john deen, the former nixon white

house lawyer. this is an issue that needs to be viewed as similar terms as depoliticizing the justice department. a lot of democrats believe bill barr, you know, that department needs to be reformed, where a lot of those justice department lawyers hiding out now, they have been given lifetime appointments on the federal bench by president trump. we're going to need a strategy that enlarges the size of the federal judiciary, the supreme court and the lower courts, and you know, we have six months to do it, and i hope people take that seriously. >> elie mystal and brian fallon, thank you both for being with me. i really appreciate it. >> thank you. nancy pelosi on the white house insistence that testing is the problem, and when the american people can expect the next round of coronavirus relief, if at all, right after this.

just moments ago the senate voting by a tally of 52-3 to confirm judge amy coney barrett to the supreme court. she now becomes the ninth justice. she is the third justice confirmed by donald trump. you'll remember, of course, the first of those, neil gorsuch, was for a slot opened by the death of antonin scalia in march of 2016, a seat that was held open immediately. a notice put out by mitch mcconnell immediately on the death of scalia, despite the fact that it was march, there would be no consideration and no hearing of the nominee and they held that open. and they pushed through brett

kavanaugh. and now with a few days until the election, amy coney barrett will ascend to that seat. her all eyes are on the supreme court as it will face a number of extremely charged cases. in fact, as elie mystal noted at the top of the program, a 5-3 decision with the five conservatives ruling over the three liberals to make it harder to count ballots that arrive after election day in the state of wisconsin. this is where we're find ourselves at this hour, just eight days before the election. speaker nancy pelosi, who will be a key player in all of this, joins me right now. speaker, let's first start about your reaction to this confirmation and what it means for you because should you be speaker in the next congress, any sort of expansion of the courts, any balancing of the courts could have to be done through law making that happened in your body. what is your reaction to tonight and what are you open to in the future? >> well, i think first let me say, chris, thank you for your focus on every aspect of what is happening here from the coronavirus and its connection to this taking up this

confirmation instead of taking up legislation to crush the virus. this is a very sad day for our country. within the past 24 hours we've seen the president of the united states say in his delusional state we've rounded the curve on this. we haven't. we heard his chief of staff tell us the eyes wide open, as you said, this is a decision, they do not intend to control the virus. over 8 million people infected, getting close to a quarter of a million people who have died and now we know they never intended -- it wasn't just ineptitude, it wasn't just politics. it just wasn't their defiance of science, it was a decision, a decision not to crush the virus. and what that means for the education of our children, the economy of our country and the rest. and what do they do but rush -- rush this supreme court

nomination through, which has also has an impact on the health and well being of the american people. it's only eight days until the election, people are voting now, as you know, over 60 million people have already voted. so in the middle of an election, they're putting this forward, eight days until the election, 15 days until the first, the oral arguments on the affordable care act and the president said within this past 24 hours, it was reported in the past 24 hours that he was there to overturn the affordable care act and all that that means for preexisting conditions, people who need access to quality affordable care act, they're coming after you, as the expression goes. so it's very sad because it's the undoing of the system of checks and balances. >> well, if that's the case, i just want to and all of what you said is broadly in line with the way i view things right now in terms that the states are in and

their decisions. but if all that is said, checks and balances can be reasserted. abraham lincoln expanded the size of the court. fdr famously attempted to when the new deal was breaking on the shoals of that conservative court until it changed its jurisprudence. are you, as the speaker of the house, are you open to efforts to do that in the future? >> well, i think that joe biden has given us a good path. he's going to have something that people can understand why this is important. i like something that brian said about not just the supreme court but the other courts. it was -- well, in 1879 -- in 1876 there were nine justices on the court. our population has grown enormously since then. should we expand the court? let's take a look and see. but not -- and that relates to the nine district courts. maybe we need more district courts as well. and one other thing we need, we need for these justices to disclose their holdings.

why should all the rest of us have to disclose our holdings and that is appropriate, but not if you're a justice of the supreme court. they're in this ivory tower and, again, one branch of government appointing the other branch of government with the acquiescence -- not only the acquiescence, bully actions of the senate of the united states. it's appalling. >> you just mentioned the coronavirus relief and this sort of testing gap. i want to state to you how i understand the state of things, which can feel a little bit like a dark comedy or an absurdist play, like waiting for gado godet like where we're talking about they're making progress, they're making progress, they're making progress. my understanding is there are huge differences substantively between what you want see see on the package and what they are what it commits the white house

to doing on testing and suppressing the virus and what they are willing to do. and it seems to me if you're position, the democrats' position is we should suppress and contain the virus, and the white house position is no we should not, that is not a negotiable, there is no negotiating to be done there. >> that's exactly right, and thank you for putting it that way. and you will maybe recall about ten days ago they finally said, okay, we'll go along with the testing plan. we're just going to make a light touch on the language. the light touch was taking out 55% of the language, changing must -- we are saying you shall -- the administration shall do this. the administration may do this. requirements became recommendations and the like. so that the money would be just, again, a suggestion for the president so that he may do this or may do that rather than require it. but we thought okay, this is just a power play. then they made a fuss, came back

and said, all right, we're there with you but they still have not come back. that's what we asked for today. we said we can get something done before the election, at least an agreement, if not a law, if you admit that we must crush the virus. people are dying. people are sick. >> madam speaker, obviously you know the state of this better than i do, you're a party to this, you have negotiated so many deals in your life. i have to say i feel like i'm insane. i'm watching this, there is no deal happening. >> that's exactly right, exactly right! >> i'm like the donkey with the carrot in front of me. it's not happening, right? >> that's when people said accept the deal. what deal? they haven't agreed to any of this. >> that's what i mean. this idea -- i guess you're still talk but it just seems like there's an income mentionable difference between

how the democratic caucus approaches the virus and the white house that cannot be papered over in legislative language. >> again, public sentiment is everything, the public weighing in. now again this is big with mark meadows saying we didn't intend to control this. that gave us much more leverage. but the fact is we have to control the virus, we have to control the virus. but in addition to that, we cannot sell our souls. just say, okay, let's just do it, whatever way they want to do it, we'll do it again. no. we've got to crush the virus. we've got to have our children safely in schools. we've got to insist that as people are going into poverty, we are asking for them for earned income tax credit, child tax credit, all these things that take people out of poverty, they're insisting on keeping their big tax cut 150 billion for the wealthiest people in the country. all the of frustration we have

about the courts or this and that is very well founded. we do not have shared values, but we hope some pragmatism might set in on them that the public would demand that they crush the virus. >> final question for you is about the election. we are, as you said, there are 60 million votes that have been cast, we'll be looking at early voting numbers. we're eight days from the election. what do you view as the speaker of the house and house's role in admission administration of free and fair elections. obviously that is not something that is in your constitutional purview in terms of the actual day to day administration in states which is under state authority. what is your view in making sure we have a free and fair election and that the results are, you know, transparent and open and it the democratic will of the people that controls. >> well, you know, one of the things that is so appalling about this judicial appointment right now is they want that person in there to further undermine our democracy.

it's not just about health care, that would be bad enough, but just in time for all the challenges that they may try to make to the election of joe biden and that court, they should be all recusing themselves from any decisions about that. but to your point, we just have to win big and that's one thing. we're losing the fight in this coronavirus because they will not do the money for elections, to protect us from overseas interference in terms of protecting the critical infrastructure of our elections or even to respect the american people who have to stand in line for four hours to vote by just expanding the opportunity to vote. so that they won't do. but we have to just make sure everybody knows the most important -- the antidote to their poison, the antidote is the vote. but we are prepared for everything. we are prepared for all of their -- what they might do to

challenge the legitimacy of electoral college, we're prepared and that means if we win the house and senate, that's easier, but even in the house, if they try to -- you know, he says he's going win in the house. he thinks that's the light at the end of the tunnel. we're saying that light is a train coming after you, mr. president. with great patriotism, with great principle, we will protect our democracy in the house. don't even think about coming to our house on this subject. so it is -- who would have ever thought -- think back five years. who would have ever thought that we would be in a situation where the president of the united states was undermining our democracy, our constitution, that the senate of the united states would be complicit, the republicans in the senate would be complicit? mitch mcconnell is not a force for good in our country, whether it's your health or your vote, the health of our democracy, we

have to win this election and we have to win big and we have to win early. >> house speaker nancy pelosi, thank you so much for copping on tonight. that was very clarifying and i really appreciate it. >> my pleasure. thank you for your clarifications as well. >> coming up, in spite of rampant nationwide effort to speculate the 62 million ballots already cast, who has already voted in north carolina and florida and pennsylvania. carol florida and pennsylvania whatever question i have i feel like there's an avenue to seek the answer. hit that app and you start a story, you're on an adventure. download a new book within seconds and it's ready to go. there's something for everybody on audible. i like short stories. short stories are easy. they're quick. i like long and like intricate stories, that's really what i love. audible originals. i like biographies. self-help. fantasy. true crime podcasts. i love it so much. i can literally listen to anything.

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on-demand glucose monitoring. because they're always on. another life-changing technology from abbott. so you don't wait for life. you live it. as of today more than 62 million americans have already voted. this morning i became one of them. i advocated early in new york city. i got to say for all that we talk about voter suppression efforts in republican-led states, the election administration in lots of democratically-led places, including new york city, leaves a lot to be desired. we have early in-person voting for only nine days before election day here. it's actually a fairly recent

innovation. it was when i was growing up not the way they did it. and there aren't that many early voting sites, so people have been waiting for hours to vote. this is what my polling place looked like today. the line wrapped around a full entire city block. it two me about two and a half hours to vote. i'm not the only one. congresswoman alexandria ocasio cortez waited an hour and a half in the bronx yesterday to vote in her district, and she lambasted election officials afterwards. >> you know, listen, there is no place in the united states where two, three, four-hour waits to vote is acceptable. and just because it's happening in a blue state doesn't mean that it's not voter suppression. >> amen. institutions and rules designed to keep turnout low and a lack of planning are a big part of the reason for the huge lines of polling sites in new york city and also across the country and places like georgia we've seen. the other part of this election

is unlike any other between the pandemic and the record levels of interest. and we are seeing really wild data on just who is voting right now. we're going to walk through some of it with our own nbc early news vote specialist next.

never in american history have this many people voted this early. as mentioned earlier, more than 62 million people have already cast their ballots, almost 45% of the total number of voters in all of 2016. i'm one of those 62 million. and now some early voting numbers can be misleading or incomplete. there is a lot you can learn if you know where to look. the big question at the beginning of this early voting period was with all these people voting early have normally just voted on election day any other year or is there a genuine surge in total voter turnout? the more the numbers add up, the more it is pretty clear we're going to have pretty high tournt this this year. texas is on a completely different trajectory. there are more than two million people who voted there early who

did not vote in 2016. that's wild. the delightfully named hays county just turned out for data. it looks like it's pointing in one party's favor. here to tell us what early voting data is telling us, john lapinski. john, i feel like early voting data can be really confounding or it can be misleading. what is your approach to thinking about what we can learn from early voting, particularly in a year where it's hard to do apples-to-apples comparison? >> yeah, and this is definitely, chris,ing? that we think, or i think a lot about. i think a lot of people felt burned with looking at that 2016 early voting data where we saw large leads for the democrats and then obviously secretary clinton not winning. so i think one of the things sort of that i do at least is i

see it's true that there is a lot of people that are going to vote early. i would say that we're estimating between 90 and 100 million people out of maybe 155 to 160 million people who will vote, but we want to know who are these people. just like you had said, are these habitual democrats and republicans voting or can we find something else in the day, do they give us some bread crumbs to see actually what's going on? what we do, the analysis i'm doing is just as you pointed out in texas, are these new voters? >> right. >> if they're new voters, one party netting more of the new votes than others? we looked at people who voted in 2008 and '12 but decided to skip 2016. are they coming back? >> right. >> and if they are coming back, are they democrats or republicans? >> let's go through a few states. let's look at florida, what we're seeing in florida. again, i have to balance this all by saying we don't know what happens on election day.

this is so weird because it's been so polarized partly by the president on partisan lines about early voting election day with trump supporters saying they're going to vote on election day overwhelmingly and democrats saying they're going to vote early, but what are we seeing in florida? >> what we're seeing in florida is the democrats are doing better. we can see that. we know in a place like florida that if you're a democrat and you vote, you're most likely going to vote for biden and if you're republican you're going to vote for trump. so you see something here in the overall numbers. but we also see there's a lot of other here. the thing that's really important is these new voters. and what we're looking at here when you are look at these numbers that you have there on the right, you're looking at the democrats that right now where it stands are netting about 100,000 votes. you might think in a state that's going to have over 10 million people vote that's not a lot but you and i both know what the margins are often in florida. trump won by 150,000 votes. we saw what happened in the senate and gubernatorial race in

2018. if you can pick up these new voters and you gain, those are really key numbers. >> let's talk a little bit -- florida is key and north carolina are key for two reasons. they're sort of the first tier out from those three midwestern states in joe biden's path to 70 in terms of wisconsin, michigan and pennsylvania. they're also north carolina and florida are going to have pretty good sense that night because they sort of precanvas or preprocess their early vote. what are we're seeing in north carolina? >> north carolina is going to be key. most likely if there's spread here, i'm in charge of the decision desk, we'll be able to call this race unless it's a tie. what we're seeing here is we're definitely also seeing good numbers for the democrats, like you said. you can't do apples to apples because in 2016, it's probably going to be double the number of voters that are going to vote early. and so what you're seeing here is good spread. you're also seeing that same thing that we saw in florida, where the democrats are really

doing well with these new voters. one of the things that we don't have a slide on here but i've looked at is we've seen a surge in new african-american voters also. and i think that when we're looking at florida and north carolina, voting is demographic in this country and, you know, like a slight uptick in the number of african-american voters that sort of turn out and especially in they're democrats could be the difference for democrats or republicans. >> the most striking new voter data to me is the pennsylvania new voter data where you see these -- pennsylvania is clearly a state where both an early voters in total and new voters, really intense polarization about voting early and part of that has to do with patterns and practices in states which hadn't been a big mail-in or early vote state and has become one amidst the pandemic. what do those numbers say to you? >> this is stark. this is where we could see wild things on election night, especially if they report out

that election day vote first in pennsylvania. that's probably -- that election is most most likely going to be very republican. but when you see numbers that are this stark, this just like, you know, this is just the democrats banking a lot of the vote. and the difference between 2016 and 2020, it's like a football game. in 2016 we were at halftime. in 2020 we're going to be in the fourth quarter. if these sorts of numbers come up, you know, we're going to see president donald trump could win pennsylvania but he's going to have to have a miraculous fourth quarter potentially if these numbers hold through election day at these rates. >> and the irony is in chronological time to use your metaphor, the first three quarters have been played and then the fourth quarter will be election day in terms of percentage of the vote. in reporting time they will just tell us who won the fourth quarter first because that will be the -- particularly in pennsylvania they will report out that this is election day votes and then they'll start counting that other stuff, is that right? >> it's sort of right.

i've talked to a lot of county officials. it will be skewed towards election day vote. in a place -- a city like philadelphia, you're going to get all of the election day vote and then probably on election night you might get a third of the early vote. so those results could be -- that's like why there's going to be a lot of discussion between the decision desk and everybody sort of that will be sort of telling the story to the american people because those numbers could be a little bit deceptive but we will know that. >> yeah. >> we will know that. go ahead, chris. >> no, no, just for people watching, we are on this. we're thinking a lot about this. yes. >> we're on this. so many people are very concerned that we don't understand exactly how the reporting is going to work and how this early voting is going to work. i spend all my time with that. >> yeah. john lapinski who does run the decision desk for us here at msnbc and is the chief heart here at the sort of the engine

of the ship of election night coverage here coming up. john, thank you so much. >> thank you, chris. coming up more on the big breaking news decision from the supreme court tonight on voting rights. why tonight's decision about how and when votes are counted in wisconsin could have massive effects for that state and the country, next.

americans are voting by the tens of millions, many by mail. just today, though, the supreme court ruled on a case involving wisconsin voters' mail-in ballots and when they can be accepted.

in the 5-3 vote, the five conservative justices on the supreme court upheld a lower court's ruling that overturned the district court ruling that said, look, you have to accept ballots after election day if they come in in a reasonable amount of time because it's a pandemic and because the rules are confusing. that would lead to tens of thousands, maybe as much as 100,000 or 200,000 votes being counted that wouldn't otherwise. but now the supreme court has come in and the conservative justices have said, no, you don't have to count those. ari berman senior reporter for mother i don't understand, authority of "give us the ballot" and vanita gunpoint pa, former head of the justice department civil rights division, two people that have their eyes on the many different battles over voting rights. first let's start with this court decision. just to lay it out to people, the wisconsin voting rules are very weird. a lot of democrats think the republicans in that state designed them to fail and they allow you to request an absentee

ballot quite late, even just a few days before the election, and then mail it, and it has to be in by election day. so the sort of argument of the lawsuit that was undertaken by democrats and which was successful back in the primary in april was, look, this is crazy. if you're giving someone a ballot two days before the election day or a day before the election day because the mail takes a while, they're not going to be able to get it in by election day. just let it count if it's postmarked. a district court said, yes, we should do that and these five justices of the supreme court haveblely overruled that. what's your response to that, vanita? >> it's a terrible decision. i think there are a lot of voting rights experts that expected the decision to come out this way honestly as terrible as it is because there's a tendency right now in the cases that are going before the court for the court to not have allowed for changes in state voting rules this close to the election. but it's a terrible decision, and i think everyone's most worried about pennsylvania and what this could mean for

pennsylvania where the court last week in a 4-4 decision actually issued a pro voter rights ruling on the same issue. right now i think there's high anxiety. as you were on air, we had the confirmation of justice amy coney barrett, who has a decidedly anti-civil rights stance on a number of issues, including on voting rights. we know anxiety is high, but i think the most important thing, chris, for voters right now, as all of this litigation is going on, is to know that the greatest inoculation against these threats and against these uncertainty is to turn out and vote as early as possible. and this is as true in pennsylvania as it is in wisconsin. this is where the voters have power right now, and when you talk about the high voter turnout that we're seeing around the country, historic voter turnout, that's the best inoculation and our greatest safeguard against the fear of ballots not being counted.

i need to put that out on the air for your viewers. >> absolutely. if you feel powerless, you can operationalize this by dropping off a ballot in the drop box or getting it in the mail today. it's eight days although it might be on the edge. it depends on how quick the mail is around you, but there's basically two different lawsuits working on similar issues, ari. so wisconsin, right, we've got this issue of, okay, you postmark it the day or two before the election, it comes in late. should we count that? now, in pennsylvania, the state supreme court said, yes, we should count that, and the republicans tried to take it up to the supreme court, and the supreme court said we're not going to issue an order to stop this. now they're going to take another run at the supreme court with amy coney barrett on essentially the same case. how do you view that, which to me seems remarkably cynical? >> it is remarkably cynical, chris. i mean they're slightly different cases in that the wisconsin case is under federal law. the pennsylvania case is under state law. so john roberts wasn't willing to overrule the pennsylvania supreme court's decision, but it seemed like four justices were

willing to overrule it. and now they want amy coney barrett on the court so they have five votes to overrule the decision in pennsylvania and basically try to do bush versus gore on steroids where they make it really hard to vote. then they challenge the results of the election. then that same court that made it harder to vote will then intervene on behalf of president trump in any disputed election. and the really disturbing thing about the wisconsin case, chris, was that brett kavanaugh actually cited bush versus gore -- >> approvingly. >> -- in his opinion. and not only that, he said there would be, quote, chaos and suspicions of impropriety if ballots arrive after election day, which is the exact same thing that donald trump is saying. so they seem to be laying the groundwork for a contested election in which the conservative majority in the supreme court with amy coney barrett will decide to weigh in for donald trump if, indeed, it reaches -- it's very, very chilling. >> that's very clearly the plan. vanita, you talk about inoculating. how do you view this? because i know there is a sort

of -- i don't want people to feel disempowered, and popular will matters here and legitimacy matters. how do you view this? >> well, i think i'm going to take a silver lining in that no other justice joined justice kavanaugh in this tonight. i'm going to take that for what that is. again, i think in this moment, as we are experiencing the highest voter turnout on record in the country, what voters need to know is that as this litigation plays out, they have the power to fill their ballots out early and, as you said, you know, at this point if they want to be really secure, send it off at a drop box. figure out where their in-person dropping off locations are, do it as early as you possibly can. the litigation will play itself out in the courts. there are a lot of brilliant lawyers working to ensure that every ballot is counted and that's what we need. that's the spirit that we need to go into right now as this litigation plays out. >> yeah. the numbers matter. ari berman and vanita gupta, thank you both so much. for that, that is "all in" on this monday night. a week to go for the election. rachel maddow show starts right now. good evening, rachel.

>> good evening, chris. thank you, my friend. much appreciated. thanks to you at home for joining us this hour. over the course of eight years that he was president, president barack obama had two of his nominees confirmed to be justices of the united states of his nominees confirmed to be justices of the united states supreme court. justice sonia sotomayor, who was sworn in, in august 2009, and justice elena kagan, who was sworn in, in august 2010. neither justice sotomayor nor justice kagan was sworn in at the white house, though. they were both sworn in at the court, at the supreme court, as a gesture of respect for the independence of the judiciary, for the fact that a justice of the supreme court should never be primarily known for his or her association with the president who gave them their appointment. again, both elena kagan and sonia sotomayor sworn in at the court, not the white house.